Experienced Massachusetts Attorney Concentrating in Children's and Family Law

Friday, January 27, 2012

FDA Regulation and Parental Rights in Artificial Insemination

The Just Families blog of New York Law School's Diane Abbey Law Center for Children and Families posted the article at the link that follows about a trend of couples sidestepping fertility clinics to find sperm donors: Online Sperm Donation

I posted the following comment there based on the first few legal thoughts* I had reading the article:

Would the FDA still think it had a right to regulate the transaction if the donor made his donation directly without the intervention of the husband? What if it were a loveless marriage and the husband was the donor the only intention being to make the wife pregnant, does that still invoke the regulatory powers of the FDA?

Regarding the presumption of legitimacy - my research suggests that those laws have nothing to do with the use or not of a physician but predate artificial insemination and create a rebuttable presumption that the husband is the father of a child born during (or in the case of Massachusetts within a certain time frame before or after) a marriage. It is to protect the child from being fatherless or being declared not the child of the mother's husband unless there is evidence presented that bursts the presumption and it is in the child's best interests to declare the genetic father to also be the legal father.

I know some state laws and AID contracts limit the right of the sperm donor to assert his parentage, but for the best interests of the child, it would seem that limiting the presumption to physician-assisted sperm donation would be counter-productive.

More thoughts:

What about this kind of transaction takes it out of the Griswold v. Connecticut or Belotti v. Baird privacy realm that permits the FDA to be involved?

Forgetting about the FDA regulation issue, what are the pure Family Law / Parental Rights issues involved? Do state laws adequately deal with the issues involved in sperm donation? Can the parties to the transaction write an agreement that would be sufficient to foreclose the donor from having any rights or obligations regarding the child? Would it be legitimate for the parties to deal with each other anonymously with fictitious names and proxy email addresses?

Has the law of parenting fallen too far behind technology to adequately address these issues? Should the law ignore technological advances until it catches up? Are there issues of morality aside from the legal issues? (That is, is there something malum im se, wrong in itself, rather than malum prohibitum, wrong because it is illegal, that needs to be addressed here?)

* I had other initial thoughts based on the title of the article that were of a practical rather than legal nature that I didn't post on the Just Families blog mainly around the question, "How do you get the sperm into the Internet for online donation?" When I read the article, I understood that it was the offer of the donation service only that are made online and the couples travel to where the donor is to consummate the transactions.

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